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Bey v. City of New York

July 15, 2009

OBA HASSAN WAT BEY, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



(consolidated cases)*fn1

MEMORANDUM AND ORDER

Plaintiffs Herbert Hinnant ("Hinnant"), Edward Ebanks ("Ebanks") and Michael Nichols ("Nichols"), (collectively "Plaintiffs") move to strike various portions of Defendant's Statement of Undisputed Facts pursuant to Local Rule 56.1 ("Defs.' 56.1 Statement").

1.

Plaintiffs move to exclude paragraphs 45 through 47 of Defendants' 56.1 Statement, which allege 1) that Plaintiffs believe they were tax exempt prior to becoming Moors and before they submitted documentation to the DOC indicating they were Moorish Nationals and 2) that Ebanks and Nichols admitted they "manipulated" their tax forms to receive more money in their paychecks. Plaintiffs deny the allegations on two bases. First, they contend that the allegation that Plaintiffs currently believe they were tax exempt is unsupported by the evidence. Second, for the allegation that Ebanks and Nichols "manipulated" their tax forms, Plaintiffs contend that the allegation is "argumentative and not factual as required by Rule 56.1;" that it is vague and misleading because it does not specify the tax forms at issue; and that the allegation is unsupported by the cited evidence because Ebanks and Nichols believed they were not required to pay taxes when the forms were submitted.

Plaintiffs argue that they no longer believe they were tax exempt and that the evidence Defendants cite to support the allegation that they continue believe they are tax exempt does not support the allegation. In the evidence Defendants cite, there is no point at which Defendants' counsel explicitly asks Ebanks whether he continues to believe that he was tax exempt. (See Ebanks Dep. 136:1-137:12.) Instead, the questioning inquires as to Ebanks' past beliefs. (See id.) And Ebanks does not make any statements referring to his current beliefs on his tax status. (See id.) In the evidence Defendants cite to support the same allegation for Hinnant, the questioning and testimony proceed the same way. (See Hinnant Dep. 99:23-100:4.) There is no discussion of Hinnant's current beliefs as to his tax status. (See id.) Nichols testified that he does not "currently believe" that he is tax exempt by "virtue of [his] status of a Moorish American." (Nichols Dep. 19:14-17.) As the evidence Defendants cite to support the allegation that Plaintiffs "believe" they were tax exempt fails to be probative of Plaintiffs' current beliefs on their tax status, the foregoing allegations are stricken from the record.

Defendants allege that Ebanks and Nichols "manipulated [their] tax forms to get back more money . . . ." (Defs.' 56.1 Stmt ¶¶ 45, 47.) Plaintiffs argue the allegation is vague and misleading because it does not specifically identify the tax forms at issue. The Court disagrees. After Defendants' counsel asked Ebanks "[w]ere you claiming you were tax exempt in 1996 because you wanted to get more money back?" she introduced into evidence Ebanks' signed "In Lieu of Form W-4" "Withholding Exemption Certificate." (Ebanks Dep. 155:23-156:21.) Counsel proceeded the same way in inquiring of Nichols and then introduced Nichols' signed W-4 into evidence. (Nichols Dep. 75:1-76:16.) From this sequence of events, it is reasonable to make the commonsense inference that the "tax forms" Defendants refer to in paragraphs 45 through 47 of their 56.1 Statement are Ebanks' withholding exemption certificate and Nichols' W-4 tax forms.

Plaintiffs also argue that the evidence Defendants cite does not support the allegation that Ebanks and Nichols "manipulated [their] tax forms to get back more money in [their] paycheck[s]." (Defs.' 56.1 Stmt. ¶¶ 45, 47.) It seems that Plaintiffs' objection is grounded in Defendants' use of the word "manipulated" to describe Ebanks and Nichols actions in indicating allowances and exemption on their tax forms. The Court agrees that the use of the word "manipulated" here tends more toward argument than a factual allegation, and that the evidence cited does not support the allegation that Ebanks and Nichols attempted to "falsify or tamper with," Webster's II New University Dictionary 723 (1984), exemptive status or the allowances to which they were properly entitled. It is true that both Plaintiffs testified that they indicated few allowances on their W-4s in an effort to retain more money in their paychecks. (Ebanks Dep. 155:23-156:8; Nichols Dep. 126:1-8.) But Both Ebanks and Nichols testified that in 1995, they believed they were tax exempt. (Ebanks Dep. 137:1-25; Nichols Dep. 122:2-8.) As such, the evidence Defendants cite does not support the allegation that Ebanks and Nichols "manipulated" their tax forms, but instead shows that they indicated the number of allowances on their W-4s to keep more money in their paychecks because they believed they were entitled to retain that money.

Plaintiffs' motion to strike Paragraphs 45-47 of Defendants' 56.1 Statement is GRANTED to the extent described herein.

2.

Plaintiffs seek to exclude various allegations relating to Plaintiffs' submission of documentation to the DOC.

Paragraph 71 of Defendants 56.1 Statement alleges that Hinnant submitted a document entitled "Constructive Notice of Waiver of Tort" to the DOC and describes the content of the document. (Def.'s 56.1 Stmt. ¶ 71.) Plaintiffs object to the allegation, arguing that the evidence cited does not support the allegation that the document was actually submitted to the DOC, and instead indicates only that the document was filed with the County Clerk of the County of Westchester. Plaintiffs also deny the description of its contents.

Plaintiffs object to Defendants' description of the "Constructive Notice of Waiver of Tort" without elaborating on the nature of their objection. The Court finds the description of the document's contents accurate. Although the factual allegation does not describe the contents of the document in their entirety, the description is accurate as to the portions of the document the allegation does describe.

Plaintiffs are correct that Defendants fail to produce any evidence that indicates that the "Constructive Notice of Waiver of Tort," signed by Hinnant, among others, was submitted to the DOC. The document, which is signed and dated March 18, 1997, appears to be accompanied by a photocopy of a certified mail envelope, addressed to the DOC and postmarked March 28, 1997. However, there is no evidence that the envelope contained the "Constructive Notice of ...


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